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Community Property/Marital Property
University of California, Hastings School of Law
Carrillo, Jo J.

1.       Marital Property Systems
a.       Universal Marital Property System: anything that enters the estate of the couple becomes a jointly owned asset
b.      Common Law System
                                                               i.      Majority in US
                                                             ii.      Whoever bought the thing or has title to an item owns it
1.       Rule: if you want to share an asset, you must opt in to do so
c.       Community Property System
                                                               i.      At divorce everything is divided 50/50 on the basis of right and/or equity
                                                             ii.      Rule: If you want to NOT share an asset, you must opt out of it
1.       Asset by asset distribution
2.       Reference page 724
a.       Section 750: Equittable division. Earning potential is something treated as an asset.
                                                               i.      A husband and wife may hold property as joint tenant or tenants in common or as community property or as community property with the right of survivorship.
1.       Unmarried people cannot hold community property or community property w/ros.
2.       Most married people hold title to their house via joint tenancy.
b.      Section 751: Interests of husband and wife in community property are present, existing and equal.
                                                               i.      Present interests: they cumulate as the asset comes in
                                                             ii.      Existing: not a mere contingency
                                                            iii.      Equal: 50/50
c.       Section 752: Except as otherwise provided by statute, neither husband nor wife has any interest in the separate property of the other
                                                               i.      Unless there is consent
d.      Section 760: Community property except as otherwise provided by statute, all property, real or personal (tangible or intangible), wherever situated, acquired by a married person during the marriage while domiciled in this state is community property
e.      Section 770:
                                                               i.      (a) Separate property of a married person includes all of the following
1.       All property owned by a person before marriage (and kept separate or accounted for)
2.       All property acquired by … gift, bequest, devise or descent
3.       The rents, issues and profits of the property described in this section
                                                             ii.      A married person may without consent of spouse convey the person’s separate property
f.        Section 910: Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
                                                               i.      You can opt out of this before marriage
3.       System
a.       Asset by asset – Method
b.      50/50 split – Goal
c.       Consent – Ideal
d.      Spouses and domestic partners are held to have a fiduciary duty to each other as well as to care for each other
4.       Pager (pg. 19)
5.       Werth v. Werth (pg. 20)
a.       Title is not determinative in our system
b.      Difference between right and equity
                                                               i.      Because of section 750 and 751
1.       Wife has a present interest in the husband’s property
6.       Income Enhancing Degrees
a.       MFA not traditionally considered an income enhancing degree
b.      JD, MBA, MD: traditionally considered income enhancing degrees
c.       Different Approaches
                                                               i.      Not property because it is too speculative to do so, but alimony is available
                                                             ii.      Not property but reimbursement alimony is available
                                                            iii.      Not property but statutory right to reimbursement for direct costs (2641) and support possibilities for indirect costs (4320(b)) available
1.       Statutory: 2641 (direct costs) and 4320(b) (indirect costs)
2.       2641 award by right (interest bearing loan theory); 4320 by equity
a.       Keep your receipts!
3.       Keeps the reimbursement remedy limited as a definitional matter
a.       Only CP contributions to education/training/loan repayment
b.      Reimbursement right belong to community – the 50/50 principle
c.       The education must substantially enhance earning capacity as demonstrated by evidence of intent and record (otherwise offsets kick in)
                                                                                                                                       i.      Student spouse’s intention to make more money
                                                                                                                                     ii.      Student spouse makes more money in fact
d.      Debt gets assigned with the degree
e.      Court is allowed to offset to prevent injustice
                                                                                                                                       i.      2641©(1): key limitation of reimbursement right
1.       Contains important assumptions about value of professional degree
                                                           iv.      It is property and is divisible at dissolution (New York)
d.      What matters is your place of domicile not where you got your degree
e.

                                                   i.      Represents an agreement between spouses to invest fully in the education in question
j.        2641
                                                               i.      Represents the CA approach
                                                             ii.      2641(a): community contributions to education = payments made for education, training or loan repayment whether while parties were residents in this state or outside of it
                                                            iii.      Community shall be reimbursed for community contributions to education/training that substantially enhance the earning capacity of one member
k.       770 Property (pg. 725)
                                                               i.      Separate property of married person
                                                             ii.      When this property is given to help education costs
1.       The property owner is making a 770 property a 760 item and comingling
a.       When property is mixed in this way the community gets the benefit of the doubt and it becomes a community property
b.      He needed to get his wife’s agreement in writing saying she would reimburse him
l.         Education must substantially enhance the earning capacity of the individual
                                                               i.      Earning capacity: speculative; actual earnings are demonstral
                                                             ii.      Statute includes only educational endeavors that actually enhance earning capacity
m.    Other stuff
                                                               i.      Rebuttable presumption effecting the burden of proof: if divorce happens less than 10 years after education then the benefit of the education has not been realized by the community
                                                             ii.      If divorce happens more than 10 years from training we step away from 2641 and divide assets not education
                                                            iii.      Reimbursement can be reduced or done away with altogether where the education allows the individual to engage in earning that decreases the need for support.
                                                           iv.      1101(2) ?